InfoLAW: Patient Safety

What is meant by “patient safety”?

Patient safety is the reduction and mitigation of unsafe acts within the health-care system, and the use of best practices shown to lead to optimal patient outcomes.¹ Countries around the world, including Canada,² are taking steps to identify how patients are unintentionally harmed by health care management. Achieving the goal of patient safety requires disclosure of critical incidents,³ analysis of how they occurred and making the necessary improvements. Nurses, as front line health care providers and patient advocates, play a key role in realizing this goal.

How could patient safety initiatives affect my nursing practice?

Disclosure to Employer
Health care institutions have a responsibility to maintain safe systems for their patients. In order to do this, administration must be made aware of critical incidents as soon as possible. While the person authorized to make decisions and take action may be a risk manager, quality assurance officer or facility manager, nurses are responsible for reporting critical incidents.

Nurses must comply with any formal internal reporting procedure, typically a written incident report. The next step is internal investigation or tracking, depending on the nature and seriousness of the event. It is helpful for an organization to know what worked well during the incident as well as what did not. Recommendations for improvement may flow from the investigation. Nursing practice will only evolve and be refined when nurses are made aware of the recommendations. Since these measures are for the benefit of patients, dispersal and implementation of any recommendations should be as timely as the initial report of the critical incident.

Institutions may also require notification of near misses, meaning patients were not adversely affected but would have been without timely identification of the risk and intervention.

Nurses and others may fail to disclose critical incidents for fear of personal consequences when investigations have a punitive focus. Institutions should focus their investigations on the cascade of events or the system in which the incident took place. A variety of legal processes exist to hold a nurse accountable for their practice if warranted by the circumstances. Patient safety initiatives are not intended to duplicate those processes.

Disclosure to Patient

Who does it?

Courts have ruled that nurses have a legal duty to comply with hospital policy on incident reporting and physicians involved in the incident have a legal duty to tell the patient what happened.⁴ Employed nurses should not take it upon themselves to disclose critical incident information to a patient unless specifically designated to do so. Disclosures could be used as evidence in legal proceedings, therefore adherence to a thoughtful policy on disclosure is recommended.

Nurses in independent practice must devise their own reasonable policies on patient safety and disclosure.⁵

Not only is appropriate disclosure to patients proper practice because of the patient’s right to know their own health information, experience has shown that early and sensitive disclosure, along with genuine efforts to correct the situation, decrease the incidence of litigation.⁶

How is it done?
Disclosure to the patient is a delicate matter. Consideration should be given to the patient’s status, the setting and the timing. If the patient was harmed by an error, the patient must be told. If the patient has not yet experienced harm after an error but there is a risk, the patient should be told. Research has shown that most patients want to know if an error has taken place even if they have not and will not suffer harm.⁷

Can the information I disclose for an internal review be used later in a civil lawsuit?

Most provinces and territories have legislation, usually an Evidence Act, which protects information disclosed to a hospital quality assurance committee from disclosure in court by classifying it as privileged.⁸ The information thus protected would include the committee’s findings and recommendations flowing from their investigation. The facts of what happened, for example a copy of the patient’s chart, are not privileged and are disclosable. The legislation is intended to facilitate an open quality assurance process for the continual improvement of patient care for the good of the community and for the future reduction of harm to patients.

It is important to recognize that privilege may only be claimed for the information specifically identified in the legislation. In a civil lawsuit, all other disclosures and documentation of information relevant to the lawsuit can be used as evidence.

CNPS beneficiaries can contact CNPS at 1-800-267-3390 to speak with a member of CNPS legal counsel. All calls are confidential.

1. Ottawa Hospital, The Patient Safety Dictionary (2003).
2. G. Ross Baker et al., “The Canadian Adverse Events Study: the incidence of adverse events among hospital patients in Canada,” CMAJ 170, 11 (25 May 2004): 1678-86.
3. Canadian Patient Safety Dictionary, October 2003 at 43: a critical incident is “an incident resulting in serious harm (loss of life, limb, or vital organ) to the patient, or the significant risk thereof. Incidents are considered critical when there is an evident need for immediate investigation and response. The investigation is designed to identify contributing factors and the response includes actions to reduce the likelihood of recurrence.”
4. Shobridge v. Thomas (1999), 47 C.C.L.T. (2d) 73 (B.C.S.C.);Gerula v. Flores (1995), 126 D.L.R. (4th) 506 (Ont. C.A.).
5. College of Nurses of Ontario, “Best practices in disclosing health care errors,” Quality Practice 2, 3 (Summer 2003). Assistance is also available from the Canadian Nurses Protective Society.
6. Philip C. Hébert et al., “Bioethics for clinicians: 23. Disclosure of medical error,” CMAJ 164, 4 (20 February 2001): 509-13.
7. Ibid.
8. The confidential disclosure of sensitive information by a nurse during a quality assurance investigation may be privileged even if there is no statutory provision. Four factors would have to exist and be proven if another party sought access to the information:
   1. the communications originated in confidence and on the understanding that they will not be disclosed;
   2. confidentiality is essential to the full and satisfactory maintenance of the relation between the parties;
   3. the relationship is one which ought to be diligently fostered; and
   4. the injury to the relationship by disclosure of the communications would be greater than the benefit gained by the correct disposition of litigation.
      Steep (Litigation Guardian) v. Scott (2002), 62 O.R. (3d) 173 (S.C.J.).

July 2005

THIS PUBLICATION IS FOR INFORMATION PURPOSES ONLY. NOTHING IN THIS PUBLICATION SHOULD BE CONSTRUED AS LEGAL ADVICE FROM ANY LAWYER, CONTRIBUTOR OR THE CNPS. READERS SHOULD CONSULT LEGAL COUNSEL FOR SPECIFIC ADVICE.